Public interest litigation describes legal actions brought to protect or enforce rights enjoyed by members of the public or large parts of it. It has been used as a tool for great social change in India, Pakistan, Bangladesh, Tanzania, Uganda, Australia, the Philippines, etc. , on such diverse issues as the environment, health and land issues. “Public interest Litigation”, is not defined in most statutes or Acts, however judges have interpreted it to mean bringing a court action for or on behalf of public interest.
According to Bhagwati J. in Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S. C. “Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.
In Australia, the criteria used by the Public Interest Law Clearing House (Vic) Inc. nd the Public Interest Law Clearing House Inc. (NSW) to determine public interest cases to support are: The matter must require a legal remedy and be of public interest, which means it must:
- Affect a significant number of people not just the individual or;
- raise matters of broad public concern or;
- impact on disadvantaged or marginalized group,
- it must be a legal matter which requires addressing pro bono publico (‘for the common good’)
In Tanzania, in Mtikila-Vs-Attorney General [H. C. C. S No. 5 of 1993] the judge observed that: “It is not the type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or a section of the society…the condition which must be fulfilled before public interest litigation is entertained by the Court is that the court should be in a position to give effective and complete relief.
If no effective relief can be granted, the court should not entertain public interest litigation. ” An action can be brought for public interest litigation under the following:
- Environmental degradation
- Violation of basic human rights of the poor
- Content or conduct of government policy
- Compel municipal authorities to perform a public duty
- Violation of religious rights or other basic fundamental rights Public interest litigation and environmental protection
Public interest litigation has been used as an effective tool to control acts of environmental degradation. In Uganda for example, civil societies have been active in compelling government and private organizations to observe measures to protect the environment. In TEAN Vs Ag and NEMA [Misc. Application No. 39 of 2001], court forced a tobacco company to increase the size of the cigarette warning on cigarette packs and advertisements; the court also held that public smoking pollutes the environment and is a danger to the health of non smokers.
In India smoking was held to be a violation of the right to life of non-smokers in Ramakrishnan and others Vs State of Kerala [AIR 1999 Kerala 385], while in Enviro-Legal Action Vs Union of India [1996] 2 LRC 226, the Indian supreme court held that uncontrolled pollution of water sources and air by industrial wastes was a threat to right to life. What is common with all the above court actions was that they were brought by individuals against a violation or a threat of environmental destruction. This has made public interest litigation part of and partial to environmental protection.
Why public interest litigation Public interest litigation is important because of several factors. Important among these are: * In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap. * Public interest litigation is important where the government is not willing to promote/protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws.
In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment. * In most developing countries governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play. * Where criminal remedies are not enough, e. g. a fine may be too small compared to the amount of environmental degradation.
A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country. * Where criminal remedies are not enforceable, e. g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company.
Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability inRylands Vs Fletcher. he Supreme Court, while holding the Municipal corporation of Kanpur responsible for the pollution of the river Ganga, instructs the “Central governmentto direct all educational institutions throughout India to teach atleast for one hour in a week lessons relating to protection and the improvement of naturalenvironment”. This is clearly an instance of the Court attempting to enter into thedomain of policy-making in its treatment of a PIL. Baxi (1985) coins the innovativeterm ‘creeping jurisdiction’ to denote this gradual intrusion of the judiciary into thedomain of the executive.
However, Baxi’s (1985) celebratory attitude towardssuch jurisdiction as an “apposite strategy for gradualist institutional renovation”does not take into consideration the limitations of such intervention in policyformulation. Shanmuganathan and L. M. Warren (1997) highlight the problem of enforcement of policies formulated by the Court:“Although the Indian judiciary has shown itself ready to uphold environmentalrights of citizens and to decide cases on the basis of strict liability, the strongenvironmental stance of the courts’ decisions has not been matched by effectiveenforcement of their decisions. (Shanmuganathan and L. M. Warren, 1997: 402)
This trend of policy formulation may lead to judicial activism lapsing into a form of adventurism (Dam, 2005) where the Court attempts to formulate policies that itdoesn’t have the means to implement. Environmental litigation and conflicting class interests However, a critique of this mode of judicial activism with respect to environmentalconcerns should not prompt us to think that judicial intervention should beessentially apolitical in nature.
The Supreme Court can position itself with respectto policy and politics in applying the underlying spirit of the Constitution withoutexpressly engaging in policy formulation which should remain the preserve of theexecutive. In fact, it will be seen that the Court increasingly faces complexpolitical questions whereby it has to strike a balance between developmentalaspects, human rights and environmental concerns. (Razzaque, 2007) Theinconsistent approach of the Court when facing larger questions of sustainabledevelopment underlines how the PIL can no longer be conceived of merely as aninstrument of securing social justice.
The appropriation of the PIL by diverseinterest groups with vested interests leading to the Court aligning itself withdiverse class interests and positions with respect to sustainable economicdevelopment illustrates the need to conceive of legal discourse within aframework of politics. In M C Mehta v Union of India the Court while orderingthe closure of 292 industries within the Taj Mahal trapezium to prevent thedegradation of the Taj Mahal due to pollution, also ordered the government toallot land for the relocation of these industries outside theTaj trapezium.
This can be read as an effort to balance environmental needs withlivelihood concerns. However, the Court has also articulated an elite discourse mirroring middle classinterest in its response to PILs. In M C Mehta v Union of India the SupremeCourt directed the phasing out of “grossly polluting old vehicles” and issuedorders for all the city buses to switch to the use of Compressed Natural Gas(CNG). The lack of adequate supply of CNG posed practical difficulties in theimplementation of the order with an adverse impact on the livelihood of commercial vehicle owners such as bus operators and auto drivers. Dam, 2004)
The Supreme Court decision while articulating a concern for public healthdisplayed insensitivity towards social costs of the orders in insisting on hasty implementation. In the above instances, environmental concerns are inextricablylinked to questions of livelihood. While in one case the Supreme Court tries toaccommodate livelihood concerns, it displays a lack of concern for the same inthe more recent case. However, the approach towards the PIL in both the casesin political in nature. PIL, environment and sustainable economic development
The complex interplay of a human rights discourse, environmental concerns andsustainable economic development considerably influences the manner in whichthe Supreme Court responds to the Public Interest Litigation in Narmada Bachao Andolan v Union of India case. Though the Court has attempted to distanceitself from the political implications of large scale industrial and infrastructureprojects that have a potential of causing damage to the environment, (Sahu,2008:7) the approach of the Court towards environmental litigation involving suchprojects has clearly demonstrated an engagement with the politics of development.
The stance of the Supreme Court with regard to the question of thefundamental rights of the indigenous tribal population displaced as a result of theSardar Sarovar Project in Gujarat highlights how the Supreme Court aligns itself with a neo-liberal, top-down approach towards development which has anadverse impact on the environment and does not make indigenous tribalsstakeholders in the process of development. The need to generate hydroelectricpower through dams and thereby minimise environmental pollution fromconventional sources of energy here comes into direct conflict with thefundamental rights of indigenous population.
In fact, the Court in its judgement in2000 refused to entertain any submissions from the Narmada Bachao Andolanabout the environmental effects of large dams. The judgement observed that aconditional clearance for the project was given in 1987 and therefore pleasrelated to submergence, environment studies and seismicity could not be raisedat this stage. In attempting to harmonise environmental needs with developmentefforts, the Court imposes a conception of development on tribals.
The Court’sresponse to the use of the PIL in this instance reflects a considerable departurefrom an earlier activist judicial intervention to ensure social justice to theeconomically deprived sections of society. The Narmada Valley Project, consisting of 31 major dams, is spread acrossGujarat, Madhya Pradesh and Maharashtra. (Divan and Rosencranz, 2001: 441)Of these, the Sardar Sarovar Project (SSP) in Gujarat, and the Narmada (Indira)Sagar Project in Madhya Pradesh would lead to the displacement of a largenumber of indigenous tribals as a result of the submergence of villages. Divanand Rosencranz, 2001: 448)
In a writ petition filed in 1994, Narmada Bachao Andolan argued that the work on the Sardar Sarovar dam must be stopped as thefundamental rights to life and livelihood of the displaced people were beingviolated by the project. The petition pointed out that the rehabilitation andresettlement of projected affected families had not been carried out inaccordance with the provisions of the Narmada Water Disputes Tribunal (NWDT).
The Court, initially granted a stay on the construction of the dam in June 1995. Divan and Rosencranz, 2001: 455) However, the Court issued an interim order in February, 1999 allowing the construction of the dam upto a height of 85metres. In Narmada Bachao Andolan v Union of India, the approach of the Supreme Court to the question of the displacement and rehabilitation of tribalpopulation mirrors an elite discourse of development whereby the ruling eliteimposes a vision of development on the indigenous population which disruptstraditional modes of livelihood.
The Court contended that the displacement of the tribals and other persons would not per se result in violation of their fundamentalor other rights and their “rehabilitation to new locations would ensure better livingconditions”. The three-judge bench also said that the rehabilitation sites wouldhave more amenities than the tribal hamlets and “the gradual assimilation of themainstream of the society would lead to their betterment and progress”.
Thoughthe Court here expressly advocates the construction of a dam in “nationalinterest”, it articulates a patronizing attitude towards the indigenous population asit does not take into consideration the social and human costs of displacementwhich cannot be completely compensated by rehabilitation. Divan andRosencranz (2001) question the position of the Court on the question of rehabilitation, “.. the court restricted itself to considering only issues of ‘relief andrehabilitation. ’.. Can a community ever be rehabilitated? (Divan and Rosencranz,2001: 456)
Also, the Court’s contention that the construction of the dam might notnecessarily lead to an “ecological disaster” does not adequately consider thesocial costs of rehabilitation of an entire community. The manner in which theCourt negotiates with questions of human rights and sustainable economicdevelopment in this instance provides a remarkable contrast to the social justiceframework within which earlier decisions on PIL and the environment werebased.
This is amply borne out by a concluding remark on the use of PIL inNarmada Bachao Andolan v Union of India case, “Public Interest Litigationwas an innovation essentially to safeguard and protect the human rights of thosepeople who were unable to protect themselves… But the balloon should not beinflated so much that it bursts. Public Interest Litigation should not be allowed todegenerate to becoming Publicity Interest Litigation or Private InquisitivenessLitigation.
The Supreme Court’s disregard for the rights of indigenous people displaced bythe Tehri dam project is also an instance of the Court endorsing an elite, neo-liberal vision of development that privileges development over environmental andlivelihood concerns. The completed dam would submerge several towns andcould enhance the occurrence of earthquakes in the region (Divan andRosencranz, 2001:431) The Supreme Court rejected a petition filed by the TehriBandh Virodhi Sangarsh Samiti, a non-governmental organization working in thefield of conservation, after a “very limited enquiry”. Divan and Rosencranz,2001:432)
Conclusion
The instrument of Pubic Interest Litigation in the realm of environmental law hademerged as a means of securing social justice for the deprived sections of society through a creative interpretation of the Constitution. (Baxi, 1985) Whilethe emergence of the PIL leads to the integration and appropriation of international legal principles in Indian environmental law, (Razzaque, 2004) itincreasingly compels the Supreme Court to negotiate with complex questions of conflicting class interests, sustainable development and livelihood concerns.
The“existence of complex technical and scientific questions” in environmental jurisprudence has led to suggestions for the setting up of green courts for more“effective resolution” of environmental disputes. (Sharma, 2008)The analysis of case law brings to the fore the limitations of a simplisticunderstanding of the impact of PIL as a form of ‘social action litigation’ that leadsto an expansion of the scope of the fundamental rights guaranteed by theConstitution. In fact, the use of the PIL as well as the response of the Court toconflicting class interests increasingly mirrors a privileging of elite, middle-class
